Constitutional right to bring property into a territory?

Tue Oct 4 16:31:35 PDT 2005

maybe it's an application of article 2, section 4? "the citizens of  
each state shall be entitled to all privileges and immunities of  
citizens of the several states.
"
On Oct 4, 2005, at 6:26 PM, Marty Lederman wrote:

> It just so happens that I'm currently teaching Dred Scott in my  
> ConLaw class, and this was one thing (apart from the obvious  
> candidates) that really struck me as counterintuitive.  (Please  
> excuse my ignorance if the answer to this is obvious.)
>
> Putting aside the question of whether the question is properly  
> viewed as one of "due process," and the question of treating slaves  
> as the equivalent of ordinary property (and the question of  
> Congress's power under Article IV to make needful rules . . .  
> etc.), how is it that Taney, McLean and Lincoln all agree that  
> there is some constitutional (or other) "right" to bring property  
> from one jurisdiction, where it is lawful, into another, where it  
> is not?  The scenario is, of course, common:  Jurisdiction A  
> permits the possession of X (e.g., drugs, liquor, diseased  
> livestock, etc.); Jurisdiction B does not.  There's a  
> constitutional right for a property holder of X residing in State A  
> to possess it -- indeed, to make public use of it -- in State B?   
> >From the 21st Century perspective, this sounds very, very weird.   
> Forget the Due Process Clause -- why would there be any sort of  
> common-law, statutory or constitutional right to bring contraband  
> into Jurisdiction B just because it was not unlawful in the  
> possessor's home state?  But hey, Lincoln and McLean agreed . . .  
> so perhaps I'm missing some obvious historical understanding that  
> has long since faded from view.  As Mark notes, it was a  
> "completely different universe."   (Did it have something to do  
> with the special status of territories, as opposed to states?)
>
> Thanks in advance for any clarification.
>
>
>
> ----- Original Message -----
> From: "Mark Graber" <mgraber at gvpt.umd.edu>
> To: <tgrey at law.stanford.edu>; <hartneed at shu.edu>
> Cc: <conlawprof at lists.ucla.edu>
> Sent: Tuesday, October 04, 2005 6:07 PM
> Subject: Re: Explaining 'what process is due' in 'substantive  
> dueprocess' (cont.)
>
> > To provide a little more support for Tom Grey (and to note that the
> > historical research is being done by scholars on the left and right,
> > proponents and opponents of judicial policymaking).  Both the  
> Republican
> > Platform of 1860 and the southern democratic platform clearly  
> endorsed a
> > version of substantive due process.  Indeed, both Lincoln and McLean
> > believed that the due process clause protected the right to bring
> > ordinary property in the territories.  One finds a substantive  
> use of
> > the due process clause in Bloomer v. McQuewan (sp) in Taney's  
> opinion.
> > No one objected (of related interest is Rice v. Railroad co. where
> > everyone apparently agrees the contracts clause limits federal  
> power.
> > The big lesson is what we think are the natural meaning of words  
> were
> > not their natural meaning before the Civil War.  It's a completely
> > different universe back there.  The only problem is that it is so
> > different that it does not make sense to import their meanings to  
> our
> > time, even if we could recover them.
> >
> > Mark A. Graber
> >
> >>>> "Tom Grey" <tgrey at law.stanford.edu> 10/04/05 5:26 PM >>>
> > Thanks to Ed Hartnett for coming up with the cite to the Risinger
> > article.
> > I'd had a vague recollection of reading something good on this  
> subject
> > many years ago --- and I'm quite sure now that this was it! The
> > right/remedy distinction is indeed quite different from our  
> contemporary
> >
> > view of substance/procedure -- what remedy one can obtain, say  
> specific
> > performance or damages, we think of as part of the substantive  
> law of
> > contracts, not the trans-substantive law of civil procedure. The  
> really
> > interesting thing to me is that there simply is no term or phrase
> > corresponding to our notion of "substantive law" before Bentham,  
> who I
> > think of as inventing the distinction -- the concept seems not to  
> have
> > been part of the mental equipment of lawyers.  And it wasn't until
> > Bentham-Austin-Holmes style positivism became orthodox (or at least
> > broadly familiar) among lawyers -- which wasn't really until the  
> very
> > late
> > 19th century -- that this concept came into general use. I think the
> > earliest characterizations of Lochner-style decisions as  
> "substantive
> > due
> > process" (aka, oxymoron) date from the decade 1900-1910.
> >
> > Thomas C. Grey
> > Sweitzer Professor of Law
> > Stanford Law School
> > tgrey at law.stanford.edu
> >
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